Embryos are frozen and stored in the cryo store at Birmingham Women's Hospital fertility clinic on January 22, 2015 in Birmingham, England.

Embryos are frozen and stored in the cryo store at Birmingham Women's Hospital fertility clinic on January 22, 2015 in Birmingham, England.

A few months ago, “Modern Family” star Sofia Vergara’s dispute with her ex-fiance Nick Loeb over what to do with their frozen embryos became public. The two used in vitro fertilization to create embryos. But when they split, Vergara wanted keep the embryos frozen, while Loeb wanted them as children. The disagreement highlights the complicated moral and legal questions that families, doctors and courts are facing as the number of frozen embryos in fertility clinics across the country grows. We look at what families are doing with unused embryos.

Guests

  • Tamar Lewin National reporter, The New York Times.
  • Naomi Cahn Professor, The George Washington University Law School. She is the author of several books, including The New Kinship and Test Tube Families: Why the Fertility Market Needs Legal Regulation.
  • Dr. Eric Widra Medical director, Shady Grove Fertility. He is chair of the Society for Assisted Reproductive Technology (SART) Practice committee.
  • Arthur Caplan Director of the division of medical ethics, New York University Langone Medical Center.

Transcript

  • 11:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Advances in invitro fertilization mean many more people who could not have children naturally now can have babies. It's also lead to the creation of thousands of unused embryos. Here to discuss the complicated questions surrounding what to do with unused embryos, Dr. Eric Widra of Shady Grove Fertility, Naomi Cahn of the George Washington University School of Law.

  • 11:07:38

    MS. DIANE REHMJoining us from Richfield, Connecticut, Arthur Caplan of the New York University Langone Medical Center and from New York City, Tamar Lewin of the New York Times. Throughout the hour, we'll have your calls as part of the program. Our number is 800-433-8850. Send an email to drshow@wamu.org. Follow us on Facebook or you can send us a tweet. And welcome to all of you.

  • 11:08:23

    MS. NAOMI CAHNThanks. It's great to be here.

  • 11:08:24

    DR. ERIC WIDRAThank you, Diane. It's a pleasure to be here.

  • 11:08:26

    REHMGood to see you all.

  • 11:08:26

    MR. ARTHUR CAPLANThank you.

  • 11:08:28

    REHMDr. Eric Widra, why do we have this challenge? What's it all about?

  • 11:08:36

    WIDRAIt's been quite a story in reproductive medicine over the last several decades in terms of the successes that we've achieved. In the old days, we would create embryos. We'd put a few back in the hope that one would stick and we may have some left over and we would freeze them and that didn't work too well. As the science and technology has progressed, we now have the ability to freeze and save embryos for couples for the future and they work extremely well.

  • 11:09:04

    WIDRASo now, as we get better at this, we're a little bit the victims of our own success. There are many, many couples who succeed quickly with treatment, have frozen embryos left over and struggle with what to do with them over time.

  • 11:09:17

    REHMAnd Tamar Lewin, are there any national statistics on how many are actually there?

  • 11:09:28

    MS. TAMAR LEWINThere aren't any that are very new. There was a survey that found 400,000 frozen embryos. A couple years later, there was one that found 600,000 and a lot of people think we're up around a million now.

  • 11:09:44

    REHMAnd I gather many of them sit in storage. How much does it cost to keep them in storage, Tamar?

  • 11:09:54

    LEWINIt depends where you keep them. If you keep them at the clinic where you made them, it's usually a little more expensive and could be as much as $1,000 a year or $1200 a year. There are cheaper places to go that are just storage facilities that may charge only $300, but it's still money.

  • 11:10:10

    REHMTell me what got you started in covering this story.

  • 11:10:16

    LEWINWhat started me covering it?

  • 11:10:18

    REHMYeah.

  • 11:10:19

    LEWINI was really surprised at both the fact that more than 1 percent of American babies are now born through invitro and that there were so very many leftover embryos and the sort of the whole scenario has switched. Older women, in particular, often use eggs from donors who are younger and who can get a lot of eggs. They can get, like, 22 eggs or 24 eggs and most people don't end up using anywhere near that many.

  • 11:10:51

    LEWINAnd it becomes quite complicated to figure out, you know, are these potential children, are they tissue? What is my responsibility to them? What should I do here?

  • 11:11:00

    REHMAnd Art Caplan, you say the first question we ought to be asking is should any of these be stored at all.

  • 11:11:11

    CAPLANRight. So there are issues about, in some countries, they square their ambivalence about making embryos by requiring that all of them be put back into the woman. Ireland has this policy which is fascinating to me. It sets up other problems, multiple birth, but they're so uncomfortable doing away with embryos that they insist that that policy be followed.

  • 11:11:39

    CAPLANIn other instances, people say, look, why are we storing hundreds of thousands of embryos, either give them to research, you know, their fate -- and I had to be flip about it, but it's kind of in the hands of the utility company. When the power goes, the embryos go. And so why are we saving them? What is the point of this? Countries like Britain, after a period of years, they do destroy them.

  • 11:12:04

    CAPLANThey're permitted to destroy them. It's not that embryos aren't destroyed here, but it's a patchwork. Some clinics do, some don't.

  • 11:12:09

    REHMDr. Widra, how would you respond to that?

  • 11:12:13

    WIDRAWell, it's not dependent on the utility company. The technology to keep these embryos cold is really robust and old fashioned. But to Dr. Caplan's point, there are a large number of these embryos out there and they're of uncertain potential. It's absolutely clear that the minority of these embryos will actually make a baby and it creates a set of conflicts between -- conflicts may be too strong a word, but a tension between the patients and the clinics and, in some cases, societal pressures or interests.

  • 11:12:47

    REHMAnd Naomi Cahn, tell us what happened between Sofia Vergara and Nick Loeb. That's one that has gone to the courts, actually.

  • 11:13:00

    CAHNThat has. And Sofia Vergara and Nick Loeb's two female embryos have certainly caused a great deal more attention to be paid to this issue. The two of them had gone through various reproductive fertility treatments, had created embryos and after they split up, there has been some dispute over precisely what should happen to those embryos. Nick Loeb has gone to court trying to prevent Vergara from destroying the embryos.

  • 11:13:33

    CAHNShe has said, I have no desire to destroy the embryos and, in fact, the two of them signed an agreement at the fertility clinic specifying that the embryos would remain in medical storage facility until further notice, until they both signed documents directing what to do with them.

  • 11:13:53

    REHMSo how -- I mean, it sounds like King Solomon. I mean, how is an issue like this to be resolved? Have you ever run into it, Dr. Widra?

  • 11:14:09

    WIDRAWe think both at my practice level, but also at the society level for the American Society Reproductive Medicine is that the best way to deal with this is prevention. We believe that very solid consents, very solid information need to presented to couples and that includes indicated disposition in the event of death or conflict so that we try very hard to get our member clinics to provide information, provide consenting that addresses these issues in advance.

  • 11:14:37

    WIDRAIt doesn't keep them from going to the courts, but at least it addresses up front the potential for this issue.

  • 11:14:43

    REHMWere all documents signed, Naomi Cahn?

  • 11:14:49

    CAHNThere are -- I have to say about half of the states have dealt with this issue in their courts and there's a great deal of legal uncertainty about this. So in some of the cases that have gone to court, there have been legal consents signed, including in the Vergara/Loeb case and in others, there haven't. Even when -- courts will first look to see whether or not there's some kind of an informed consent agreement.

  • 11:15:15

    CAHNBut even where this an informed consent agreement, courts don't necessarily feel like they have to follow those agreements and often the agreements say we will dispose of the embryos. Instead, courts may step back and say, oh, gee, there was an agreement here, but one of them really wants to have a child because of cancer treatments, this is the only way to have a child and so therefore, we're going to give that party the frozen embryos.

  • 11:15:48

    REHMArt Caplan, what kinds of questions do you see when it comes to who actually controls the embryos?

  • 11:16:00

    CAPLANWell, Diane, how long is this show? Lots of questions. One issue that comes up is when people die, for example, who made the embryos, who will have a controlling claim over them? Would parents be able to step in? Could a sibling be able to step in? We haven't seen much of it yet, but another question is you're freezing and a biological descendent were to say, I want those embryos, would that be permitted by a court?

  • 11:16:35

    CAPLANWould a clinic go along with that and allow access? We have issue that come up when people make embryos, one of the party's already deceased. So there are people who go to Afghanistan and Iraq and they are deploying to dangerous situations. They deposit sperm. They die over there. A wife or a fiancé says I'm going to make a baby now or let's store embryos and do it that way.

  • 11:17:07

    CAPLANJust so we don't all fall asleep here, I'll end -- there are many more questions that could come up, but, you know, we now have the possibility, too, of freezing ovarian tissues, maybe getting eggs and making something later after a person is deceased. So I've long been of the view that while there is a role for courts and I think that American Society for Reproduction Medicine does try to issue guidelines and encourage people to pay attention to all the different contingencies, I still think it may be important to get a little bit of legislation in here about guidance in terms of where we go.

  • 11:17:48

    REHMArthur Caplan, he's director of the division of medical ethics at New York University's Langone Medical Center. Short break here. We'll be right back.

  • 11:20:01

    REHMAnd we're talking about the creation of thousands of unused embryos and the complicated questions surrounding what to do with them. Here's an email. "What's the lifetime of an embryo? Do not embryos deteriorate?" Dr. Widra.

  • 11:20:25

    WIDRAWell, depending on which side of this you're on, the good news or the bad news is, is that they don't deteriorate over time. The probabilities have improved over time that any one frozen embryo can become a baby. But the time they spend at -80 Centigrade is they're effectively shut down and there's no deterioration or decline in potential.

  • 11:20:42

    REHMAnd I gather you had said, Naomi, that a child had been created after 20 years of a frozen embryo?

  • 11:20:54

    CAHNIt appears that where the embryos are of good quality that frozen embryos can result -- can be transferred and can result in children 15 to 20 years after they've been frozen.

  • 11:21:06

    REHMTell me about how state laws differ in regard to holding, freezing embryos.

  • 11:21:14

    CAHNJust a few states actually have laws dealing with this issue. A few states -- California, for example, requires that the reproductive endocrinologist provide information to a commissioning couple about what their options are. Florida goes farther than that and says that the fertility clinic actually needs to get a signed agreement from the parties on what would happen in the case of if they separate, if they divorce or if one of them dies. And then, by law, Florida provides, in the absence of an agreement, what will happen to those frozen embryos. But that's just a few states that have directly dealt with this.

  • 11:21:54

    REHMTamar, how have you seen various states dealing with these issues?

  • 11:22:02

    LEWINWell, when they get to court, the decisions are really all over the lot. In Massachusetts, while we think it -- no one would argue you shouldn't have an advance, you know, talk about it and decision about it -- in Massachusetts, they said, these contracts are just not enforceable by a court. Other people say, well -- one of the odd things about this is that there was a research study that found that two-thirds of people who make an advanced decision, change their minds later down the road when they have a kid. So that becomes very complicated. So some courts say there has to be a contemporaneous agreement from both people that it should be used. Others say it's a matter of contract. It's really -- there's no consensus yet.

  • 11:22:47

    REHMAnd, Art Caplan, white kind of an agreement do you think there should be?

  • 11:22:55

    CAPLANWell, I think they have to go for agreements that anticipate the major events we know that create uncertainty: death, divorce, severe disability. I think, at the same time, one other principle -- ethical principle that I'll put on the table that I think should govern this, is I think it is wrong to make somebody parent against their wishes. So, say, in the Vergara situation, if she doesn't want to have a child with Nick Loeb, no matter what was said, now that they're split up, I don't think anybody should force her to become a parent of a child, even though someone wants to use the embryos.

  • 11:23:37

    REHMWhat kinds of agreements do your patients sign when they come in?

  • 11:23:43

    WIDRASo as part of the informed-consent process, there's a series of pretty straightforward, bold-faced boxes that say: Okay, in the event that one of you dies, this is what you have to do next. You acknowledge this. And please tell us what you'd like to do. In the event of divorce or separation, these are the events that will occur. Tell us what to do. Once again, it unfortunately doesn't necessarily prevent people from going to the courts. But to Dr. Caplan and Naomi's points, the cases that get to the courts are on the ends of the bell curve. You know, we have a responsibility to the people to tend to make the decisions but still just struggle with, what do I do with these embryos down the road in a non-contentious situation?

  • 11:24:29

    REHMNow, Naomi, you're not only an expert in this field, you also went through fertility treatments. Do you remember thinking hard about these questions?

  • 11:24:45

    CAHNWell, I have to confess, I was a lawyer even, as I was going through these treatments. And I had not a thought about what would happen if my spouse and I were to get divorced. The emotion is such that contemplating the idea that we would have any excess embryos was almost laughable at the time. We were just so focused on trying to have a child. So you -- it would have been important. I mean, I suspect I did sign something. But it is important at that point to think about it, because that is a time when you're closest to it. And it's also, you know, we then -- after we had successfully had a child, we then did get annual reminders from the fertility clinic that we still...

  • 11:25:33

    REHMAnd rental fees.

  • 11:25:34

    CAHNAnd rental fees.

  • 11:25:35

    REHMYeah.

  • 11:25:35

    CAHNThat's right, which forced us to remember, "Oh, yes. We have these frozen embryos. What should we be doing with them?" And so we had a chance to revisit our decisions each year. But it's important to try to resolve these issues when -- at the time that the couple is still together because -- so they don't make it -- they don't go into court.

  • 11:25:56

    REHMAnd what did you finally decide to do?

  • 11:26:01

    CAHNWell, it took many years. And like many people who've gone through this, if you ask people who have frozen embryos, many of us think, "Well, we'll just keep them in storage for a long period of time." And there are lots of studies...

  • 11:26:14

    REHMThinking what?

  • 11:26:17

    CAHNThinking there are ethical issues involved in destroying these siblings to our children. Thinking that they could be used, as Dr. Widra pointed out, for research. Thinking, "Oh, gee, they could be -- they could give another couple as much joy or another person as much joy as they've given us by donating the embryos to someone else. Gee, what should we do?"

  • 11:26:43

    REHMAnd Anjolie writes, "Clinics should do whatever the parents want done with them. If there's no decision, then donate them to scientific research." And then Karen writes, "Use them for stem cell research. Let's find a cure for Parkinson's and other diseases. Let's find out how to get our paralyzed veterans functioning again." Dr. Widra, how to you feel about that?

  • 11:27:18

    WIDRAThose are -- that's very well put in terms of what we could do with these embryos. Stem cell research is politically and scientifically complicated. There are no federal dollars to work with embryos to create stem cells or -- or very limited federal dollars.

  • 11:27:32

    REHMNo federal dollars. But there are private...

  • 11:27:36

    WIDRAIndeed.

  • 11:27:36

    REHM...research going on.

  • 11:27:38

    WIDRAHowever, all the centers that were doing private research on embryonic stem cells have pretty much abandoned that in favor of other sources of stem cells that are easier to get and less controversial and to which they can apply federal funds. There is an emergence of a kind of second wave of research opportunities that are occurring in small pockets that are interested in looking at embryos not just for stem cell research but for answering some basic biological questions about reproduction. And we hope that both of those avenues will open up in the future for patients with frozen embryos.

  • 11:28:14

    REHMSo, Tamar, what happens when people don't want to continue storing their embryos. That's got to be a pretty difficult question for them to deal with.

  • 11:28:29

    LEWINThere's a lot of different things that happen. The one I found most surprising was what's called compassionate transfer. This is for people who are just too distressed to think of destroying them and they find a doctor who will implant them in their womb at a time of their cycle that they won't get pregnant. Some doctors say, "This is insane. I'm not doing it." Other people, you know, say, "I'm going to go get those embryos from the storage facility and I'm going to have a little ceremony and I'm going to put them in the ocean." Other people say -- very few -- "I'm going to transfer ownership to my grown children." That's an odd one.

  • 11:29:10

    LEWINAnd the American Society for Reproductive Medicine said if they just abandon their embryos and are not in touch with the clinic for five years and have given no instructions, the clinic can decide to destroy them.

  • 11:29:23

    REHMAnd is that what happens, Dr. Widra?

  • 11:29:27

    WIDRAThere have been embryos that have been discarded in the states, for sure. But it is a very challenging situation for clinics and for the doctors. We live with a little bit of unfounded fear that, after we do this, it can't be undone. And someone comes back and says, "Oh, no, you didn't really inform me. You didn't try hard enough to find me. And now my embryos are gone." And for those of us who grew up in obstetrics and gynecology, that's a scary idea from a liability standpoint.

  • 11:30:02

    WIDRABut I think, ethically and operationally, we have to do something with these embryos. And we just can't continue to accumulate them and store them. And at some point, we have to follow our own guidelines, follow our own rules and discard them if that's the wishes of the parents or if nothing's been done to give us guidance.

  • 11:30:25

    REHMWell, is there a time limit of five years?

  • 11:30:30

    WIDRAThe American Society and my clinic as well, we have a five-year limit. And that's what we recommend.

  • 11:30:36

    REHMAnd what do you think about that, Art Caplan?

  • 11:30:40

    CAPLANI think it makes moral sense. The problem is, we're ambivalent about what embryos are. So for a lot of our public policy, we talk about them as potential people, possible people, but not people. But if you go, as I have, and spend some time in some of the IVF clinics, you know, your first picture, ultrasound of that embryo, it gets talked about as a person -- sometimes as a baby. So there are very mixed messages that we have at reproductive medicine versus, say, abortion discussions about what are embryos. So I have no problem personally. I think an abandoned embryo, five years or more, there's just no point in keeping it. But it's going to strike some people as killing. And that's where we get into the politics of disposition of unclaimed embryos.

  • 11:31:31

    REHMAnd, Tamar, what have you seen in clinics around the country?

  • 11:31:36

    LEWINA lot of clinics don't destroy anything because it's just too scary. It all sort of harkens back to the whole abortion debate in many, many ways. Not just this one, but also the question of if you have an embryo that's outside of a woman's body, you know, is the man's right and the woman's right to decide what becomes of it the same? So somebody like Nick Loeb saying, you know, "I want to use them," and Sofia Vergara saying, "I don't." It's -- the man may say, "Well, you know, no one should -- no one should force this," just as Art Caplan said. It's the same as making a pregnant woman have a baby. We don't do that. And now that the embryo's not inside the woman, the man should have that right too, if he doesn't want to be a parent.

  • 11:32:26

    REHMDo you agree with that?

  • 11:32:29

    CAHNI think this is something that courts are just starting to struggle with as they deal with the disputes going to court. In only one state, in the State of Louisiana, an embryo has something that is close to personhood status by law. But no other state has such a law. But Louisiana has very, very stringent rules -- laws that protect the personhood status of embryos. And we've see this -- this is definitely becoming a political issue, with personhood amendments having been proposed in a number of different states.

  • 11:33:11

    REHMNow, let me ask you about an even more controversial aspect to this. Tamar, are some people actually selling their embryos?

  • 11:33:25

    LEWINI don't know. I don't -- you're not supposed to sell your embryos. What you can do is collect a certain amount of money -- and $2,000 or $3,000 has been thought to be the ceiling on that -- in fees. The person who's going to take your embryo can pay your storage fees for a while. And there's other fees they can pay. But it's not like selling your eggs, where we know that that's okay, or selling your sperm. People really draw the line at selling embryos. There have been a few people who've come kind of close. But they haven't stayed around or lasted.

  • 11:34:02

    REHMNaomi.

  • 11:34:03

    CAHNIt's a question of are we dealing with the individual gametes? That is, are we dealing with the individual eggs and sperm? What happens when they -- when someone deliberately causes them to come together to create an embryo? Is that embryo really, truly any different from having separate eggs and sperm and selling, legally, the eggs and sperm? There have certainly been many cases of embryo donation. And more than a thousand children are born each year through embryo donation. But that's a different issue, of course, and that's a different moral issue.

  • 11:34:38

    REHMAnd you're listening to "The Diane Rehm Show." I'm going to open the phones now. Let's go first to Stefanie in Baltimore, Md. You're on the air.

  • 11:34:53

    STEFANIEHi, Diane. Thank you for having me on your show.

  • 11:34:56

    REHMSure.

  • 11:34:57

    STEFANIEI just had a comment about my experience with my embryos being stored. There was a point where I could no longer afford the rental fees. And I did not want to just dispose of my embryos. I wanted to actually donate it to someone or to stem research -- stem cell research, or any cause. But there -- it wasn't an option. I actually had to find a couple that I wanted to personally donate my eggs to, which I didn't know anybody at the time who needed it. And so I asked the facility that I used, what would they do with them? Would they use it for any studies. And they said, no, they would just get rid of them, you know. So it kind of felt like a waste on my part because I just didn't want to get rid of them...

  • 11:35:42

    REHMSure.

  • 11:35:43

    STEFANIE...but I couldn't afford to keep them.

  • 11:35:44

    REHMBoy, that's a tough situation.

  • 11:35:48

    WIDRAYeah, Stefanie brings up a really important issue in embryo donation. It's -- and my practice and some other groups are working hard to try to come up with better solutions for this. We don't want someone to make a decision, because of economic hardship, that they're not comfortable with. And so I think we need to expand the ability for couples to donate, whether that's to another couple, anonymously or conditionally, or to research. And what that means is aggregating those people together, giving them ways to connect with each other and establishing a set of rules for doing it -- including not selling them.

  • 11:36:28

    REHMWhat do you think about that, Naomi?

  • 11:36:32

    CAHNGiven the number of unused frozen embryos and the number of people in the United States who are infertile -- about one out of every six couples will experience infertility -- then it seems to make sense to help to pave the way for embryos to be donated. On the other hand, studies of people who have frozen embryos show it's a very small minority of people who actually want to donate their embryos to another person for use.

  • 11:37:03

    REHMAnd I would think that creating one's own embryo would be the important thing that one would want, rather than someone else's. Naomi Cahn is professor at The Georgetown (sic) University School of Law. Short break here and more of your calls when we come back.

  • 11:40:00

    REHMAnd welcome back. We're talking about embryos, the proliferation of unused embryos that are in frozen storage. Here's an email from someone who says, I have beautiful twins that were born with donor embryos. The donor couple made the generous choice to give their unused embryos to the fertility clinic for other couples to use. We were finally able to have children after 15 years of infertility. I'm grateful every day for the choice they made, as difficult as it must have been, and would encourage other couples to consider embryo donation. You, Dr. Widra, are part of starting Embryo Options. Tell us about that.

  • 11:41:11

    WIDRAThanks, Diane. I'm the medical director for Embryo Options, which we are beta testing or rolling out locally at Shady Grove. This is an operation designed to bring patients who want to donate embryos and patients who want to receive them together at a national level. It provides education for patients about all their disposition options, donation to other couples, donation to research, discard, compassionate transfer, and provides them access to the fertility centers and the other people who are interested in working with them.

  • 11:41:47

    WIDRAAnd we've worked with some of the premier legal people in reproductive medicine and are working with some of the premier researchers and people who understand donation to really create a network of practices and patients who can connect with each other anonymously, conditionally and find good solutions, find solutions that are easy to execute, find solutions that are affordable for them for their excess embryos.

  • 11:42:12

    REHMHow much does it cost?

  • 11:42:15

    WIDRAThe cost of going through any of these things is really dependent on the specific clinics' policies. At Shady Grove, we don't charge people to donate their embryos. In fact, if they donate their embryos, they no longer pay their storage fees.

  • 11:42:30

    REHMI see.

  • 11:42:32

    WIDRAAnd so we then find recipient couples who want to use them, and yes, they pay fees to go through their treatment cycle and their screening and the legal paperwork, but those are...

  • 11:42:44

    REHMBut do you pay additionally to buy the embryos?

  • 11:42:46

    WIDRANo. I can't speak to what happens in every center, but no, we would not ever consider that.

  • 11:42:54

    REHMNow, are other clinics doing much of the same thing, Naomi?

  • 11:42:59

    CAHNMany clinics are offering the option of providing donor embryos to their patients. So this is -- given the number of frozen embryos in storage, many clinics see the need to do this.

  • 11:43:13

    REHMArt Caplan, you wanted to weigh in.

  • 11:43:15

    CAPLANYeah, just three points. Adoption will never get us out of the problem of what to do with 800,000 embryos already stored. A lot of folks are not going to be interested in adopting because they go to in-vitro fertilization to have a genetic link to their child. So they don't want someone else's embryo. But most interestingly, adoption is what you do with children, and if you start talking around the concept of adoption, you're bringing back the notion that you have people. I'm going to tell you, politically it's going to be even harder to talk about destroying abandoned embryos because you're adopting them in the children framework. It's just an interesting inconsistency around the whole area.

  • 11:44:01

    REHMEric, are you talking about adoption?

  • 11:44:04

    WIDRAA hundred percent not. If I said the word adoption, I hope the lightning bolt comes through the window. This is not adoption. These are not people. These are not children. These are embryos that have some, in some cases very limited, potential to become a child, in others much greater potential. This is donation of biological tissue to help solve a devastating problem called infertility.

  • 11:44:26

    REHMTamar?

  • 11:44:27

    LEWINThere's a big split on this. The people who say embryo adoption generally are coming at it from a Christian, anti-abortion, personhood approach, and the American Society for Reproductive Medicine and most clinics say no, no, no, no, no, we don't mean embryo adoption, we mean embryo donation. And it is growing, and there are quite a lot of infertile couples who very much want, more than they get, embryos to which they have no genetic connection, and some of them are even doing it in an open way, so they want to maintain contact with the donor family. It's really a new kind of family being created around the ties between the kids rather than the parents.

  • 11:45:16

    REHMAll right, to Eileen in St. Petersburg, Florida, you're on the air.

  • 11:45:23

    EILEENHello, and thank you for taking my call.

  • 11:45:24

    REHMSure.

  • 11:45:25

    EILEENI always enjoy the show.

  • 11:45:26

    REHMGood.

  • 11:45:27

    EILEENI encourage and am onboard with the opportunity to have these embryos donated to couples who want to have a child naturally. I have my son and his daughter, I mean his wife, went through great expense, to the point of really being quite stressful on them emotionally, financially, to have children. And we were looking -- running out of options with unsuccess. They were not successful with their implantation.

  • 11:46:02

    EILEENSo finally they were, and they have a lot of embryos leftover, and to have the option to donate them to someone who can't financially afford ever to even think about having an embryo implanted in them because they're not viable, they can't do it, whatever their problems are. Another question I would like to say, too, is when you have -- something to think about. When you have someone who has had let's say 10 embryos be successful and potentially be viable, they have one pregnancy, they have multiple births. They decide to have another implantation, they have another multiple birth. Question mark to think about, too, is multiple births is very, I think, impacting on the woman's health.

  • 11:46:51

    REHMOf course, Dr. Widra.

  • 11:46:53

    WIDRAYes, we strongly encourage anyone who has a good chance of success based on their age and the development of their embryos to put one back at a time, and that goes just as well for frozen embryos. The current technology gives us embryos that work as well, or in some cases better, than when they are what we call fresh. And so we really discourage and try to build programs that facilitate transferring a single embryo at a time.

  • 11:47:19

    CAHNFor women under the age of 35, most of the embryo transfers are just one to two embryos for exactly the reason the doctor just said.

  • 11:47:27

    REHMI see. All right, let's go to Bay Village, Ohio, Michelle, you're on the air.

  • 11:47:34

    MICHELLEHi, Diane, thank you for taking my call.

  • 11:47:37

    REHMSure.

  • 11:47:38

    MICHELLESure an interesting discussion here. My brother and his wife had infertility issues, and they decided to try in-vitro, and they went through several rounds, four to five rounds over about four years, unsuccessfully. There were leftover embryos, which they kept stored and paid for that and over many years, five years. And eventually they had to make a decision, and I think it was primarily financially. I mean, that's how my brother couched it, but I really know with my sister-in-law, it had just become too stressful and depressing to try and try and try with no success. And so they made that decision.

  • 11:48:38

    MICHELLEBut to have the embryos destroyed was to my understanding. But at the last minute, they did one more round, just, like, one last time, and then we're done. And I have seven-year-old twin nephews now, which I always look at as old souls because I think they're not really seven, are they, they're really more like 12 or 13 at this point.

  • 11:49:04

    REHMWhat do you think about that?

  • 11:49:06

    CAHNI think that's wonderful.

  • 11:49:10

    REHMI mean the idea of judging the age by virtue of when that egg was created.

  • 11:49:19

    WIDRAI think it makes for great stories like she tells. I think that's great. And we joke with our patients a lot that you're having your twin three years later. But they're just the same as if they were made the day before.

  • 11:49:30

    REHMTamar, you wrote about a California fertility clinic that is actually handpicking eggs and sperm. Tell us about that.

  • 11:49:44

    LEWINAnd sort of on the edge. It's called California Conceptions. It's in Davis, California, and they have -- they're actually not doing embryo donation, they're doing embryo creation. The clinic goes out and chooses and buys what they think will be highly marketable sperm and eggs, creates the embryos and then doles them out to a small group of families who want them. And those families do not know each other, but they're getting full-sibling embryos, and it's much cheaper than either adopting or getting your own egg because you're sharing the cost among others.

  • 11:50:29

    LEWINAnd this clinic also gives, if you meet certain guidelines, you get three tries, and you get your money back if you don't get a 12-week pregnancy through one of the three. So the clients are completely thrilled. A lot of people have said yuck, this means the clinic actually owns the embryo at the beginning because it has no parents, and that is not right. And in New York there's a law saying you may not create embryos unless it's for your own use. But this is just one of the things that's out there now.

  • 11:51:00

    REHMArt Caplan?

  • 11:51:01

    CAPLANYou know, there's an interesting twist on Tamar's story here because there's also an element of eugenics here. When she says go out and find, quote-unquote, the best male and female gamete donors, you can get a little book, and you sort of say hmm, I'd like a 6'5", male, Ukrainian mathematician, let's see what's in the book. So there may be a bit of almost overpromising, since as we all know, even with the same parents and the same family, you don't get the same outcome.

  • 11:51:31

    REHMSo you had said, Naomi, what we need is more regulation.

  • 11:51:37

    CAHNI have said that, and in this particular area, there are two things that come to mind. One of them is making sure that all fertility clinics do what Dr. Widra described his does, which is to make sure they get those informed consents about what to do with frozen embryos once they've been in storage for a period of time. Other things to do, the law is still catching up to the technology. And so not all states have dealt with precisely who are the parents of embryos that have been donated, for example.

  • 11:52:10

    CAHNThey haven't even dealt with what -- who are the parents of eggs that are donated. So that's another area where additional regulation would certainly be useful.

  • 11:52:20

    REHMSo go ahead, Dr. Widra.

  • 11:52:21

    WIDRAThe problem with regulation in a field that's already highly regulated is unintended consequences. I would bet the four of us could agree to regulate a way that creation of embryos for sale, but you have to be careful what that regulation, what that legislation entails. Some of the personhood amendments have had, despite what many people think is an appropriate approach to the embryos themselves, have consequences beyond reproductive technology in terms of what someone is doing legally or illegally later in pregnancy or in the event of even an abnormal pregnancy. So regulation has a role, but I think we have to be very careful about the unintended consequences.

  • 11:52:58

    REHMAnd you're listening to the Diane Rehm Show. And let's go to Steve in Grand Rapids, Michigan. You're on the air.

  • 11:53:09

    STEVEHi, thank you very much for taking my call.

  • 11:53:10

    REHMSure.

  • 11:53:11

    STEVEWe have been paying for 14 years the embryo storage fee, and my wife and I have discussed many times donating our embryos, but unfortunately we have to pick them up, according to our clinic, and take them to wherever we want to take them. So how does -- how does one, you know, for a national clearinghouse I heard earlier, how does one get frozen embryos to these folks so that they can be used or, you know, by someone who wants them or needs them?

  • 11:53:48

    WIDRAWell, it's a great question, and we think medically that if you're going to receive embryos that are being donated, you should probably go to where the embryos are, rather than shipping embryos around the country, you know, when it's 90 degrees in Grand Rapids. Does it get to 90 in Grand Rapids?

  • 11:54:06

    WIDRAAnyway, that's a little bit of an unusual story, but if you can connect with the right fertility center, it is not unusual to ship frozen sperm, frozen eggs or even frozen embryos under specific and very controlled conditions. There are some logistical issues that you want to be careful of, but that can be done.

  • 11:54:27

    REHMDo you see that being done, Tamar?

  • 11:54:32

    LEWINIn fact there's a few very huge storage facilities, and they ship all the time, all over the place.

  • 11:54:40

    REHMThey ship all the time, under these very controlled conditions.

  • 11:54:48

    LEWINRight.

  • 11:54:49

    REHMYeah. Where do you see this heading, Tamar? I would imagine that the number of these embryos discarded is going to keep on growing.

  • 11:55:03

    LEWINWell, it seems that way except a lot of people who are uncomfortable with this have decided why not just fertilize as many eggs as you're going to use, freeze the rest of the eggs, which is not such a fraught kind of decision, and then when you're ready, you can create more embryos. And that would make the whole thing somewhat easier. It's more expensive, it's more cumbersome, but it gets around this whole problem.

  • 11:55:31

    REHMWhat do you think, Dr. Widra?

  • 11:55:32

    WIDRAI think that's a great point, and there are two really important new technologies that help this. One is, up until a few years ago, we couldn't freeze eggs very successfully. Now we can inseminate a limited number of eggs from one group of eggs that we retrieve from the patient, freeze the others, and so if those first couple embryos don't work, we can then use the frozen eggs without putting the woman through another in-vitro fertilization cycle.

  • 11:55:53

    REHMAnd Dr. Caplan, what's your thought?

  • 11:55:58

    CAPLANWell, I know there's some fear of more regulation. I wouldn't stay awake at night worrying about it. The country hasn't regulated this technology since the days of Louise Brown and the first test-tube baby. What I suspect is true is abortion politics will prevent any real hard-nose regulation, and you hear it here. When we start talking about the embryo's birthdate is the date of its conception, well, we know that's a particularly point of view about what an embryo is.

  • 11:56:27

    REHMYeah.

  • 11:56:28

    CAPLANWhen we hear clinics say I'm nervous about destroying them, I think it's partly because they don't want to become the object of attention by people who find that murder. So as much as I'd like to see more regulation, I don't think so.

  • 11:56:41

    REHMArthur Caplan of the New York University Langone Medical Center,

  • 11:56:41

    REHMTamar Lewin national reporter for The New York Times, Naomi Cahn, professor at GW Law School, she's the author of several books including "Test Tube Families: Why the Fertility Market Needs Legal Regulation," and Dr. Eric Widra, medical director of Shady Grove Fertility. Thank you all so much.

  • 11:57:16

    CAHNThank you.

  • 11:57:17

    WIDRAThank you, Diane.

  • 11:57:19

    REHMAnd thanks for listening, all. I'm Diane Rehm.

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